State v. Cervantes-Puentes
2013 Kan. LEXIS 542
Kan.2013Background
- Cervantes-Puentes charged in May 2009 with aggravated indecent liberties with a child.
- In a Wichita store, he allegedly rubbed his clothed penis against a 13-year-old girl while posing as needing a shirt for his daughter.
- The girl reported the incident; Cervantes-Puentes was apprehended and identified by the girl at trial.
- The State presented evidence of similar encounters with adult women in other stores and a surveillance video.
- Cervantes-Puentes testified he acted to send clothes to his wife and daughters, denying sexual motivation; he was convicted and sentenced to life without parole for 25 years under Jessica’s Law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of in-court identifications | Cervantes-Puentes contends pretrial photo array was impermissibly suggestive. | State-identified array tainted reliability; but record insufficient. | Conviction affirmed; record insufficient to review array and reliability factors. |
| Preservation and review of case-specific § 9 claim | District court failed to make necessary Freeman findings; claim preserved for appeal. | Lack of district findings prevents appellate review. | Claim not properly reviewable due to lack of factual findings; preserved for failings but not reviewable. |
| Categorical Eighth Amendment challenge to sentence | Graham-based categorical challenge to a hard 25-year sentence for non-penetrative offense. | Presents a case-specific proportionality issue, not a valid categorical claim. | Rejected as a valid categorical claim; does not establish a constitutional rule. |
Key Cases Cited
- State v. Mitchell, 294 Kan. 469 (2012) (two-step standard for admitting eyewitness identifications)
- State v. Corbett, 281 Kan. 294 (2006) (eight-factor reliability analysis after impermissibly suggestive procedure)
- State v. Ponds, 227 Kan. 627 (1980) (in-court identifications may stand despite deficient pretrial confrontations)
- State v. Freeman, 223 Kan. 362 (1978) (three-prong test for case-specific challenges to sentences)
- State v. Seward, 296 Kan. 979 (2013) (requirement of factual findings for Freeman-based review)
- State v. Ortega-Cadelan, 287 Kan. 157 (2008) (Freeman findings necessary for appellate review)
- State v. Gomez, 290 Kan. 858 (2010) (categorical Eighth Amendment claims may be raised on appeal)
- Graham v. Florida, 560 U.S. 48 (2010) (categorical delay/length challenges to sentences discussed at high level)
- State v. Mossman, 294 Kan. 901 (2012) (applies Graham to state-law proportionality contexts)
- State v. McCullough, 293 Kan. 970 (2012) (record-designation burden on appealing party)